Citation Nr: 1303337 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-20 740A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for hypertension, for accrued benefits purposes. 2. Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for a bone disease and fractures, due to improper VA treatment, for accrued benefits purposes. 3. Entitlement to payment of special monthly compensation (SMC) at a higher rate, for accrued benefits purposes. ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served in the United States Army from August 1967 to March 1970. He passed away in July 2008; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Board notes that because the Veteran died prior to the effective date of enactment of 38 U.S.C.A. § 5121A, provisions regarding substitution of claimants, and permitting supplementation of the record, are not applicable. Moreover, in recent filings the appellant has discussed disagreement with the effective date assigned for the currently awarded SMC, in addition to the continuing appeal regarding the level of such award. This is beyond the scope of the appeal pending at the time of the Veteran's death, and hence beyond the current appeal for accrued benefits. The appellant may not initiate a new appeal or claim; she may only step into the shoes of the deceased for purposes of concluding his appeals. 38 U.S.C.A. §§ 5121, 7105; 38 C.F.R. §§ 3.1000; 20.300. FINDINGS OF FACT 1. In correspondence to the Board and RO, the appellant has repeatedly expressed her desire to withdraw her appeals for increased evaluation for hypertension, and for entitlement to benefits under 38 U.S.C.A. § 1151, both for accrued benefits purposes. 2. At the time of his death, and for all periods relevant to the appeal, the Veteran was service-connected for posttraumatic stress disorder, rated 100 percent; residuals of a right hypertensive hemorrhage with complete paralysis of the left upper and left lower extremities, rated 100 percent; hypertension, rated 10 percent; heart disease, rated 30 percent; and slurred speech, rated 0 percent. 3. At the time of his death, and for all periods relevant to the appeal, the Veteran had lost use of his left upper extremity from shoulder level, and of his left lower extremity from hip level. 4. The Veteran at no time had undergone amputation of either the left upper or left lower extremities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for entitlement to an evaluation in excess of 10 percent for hypertension, for accrued benefits purposes, are met. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2012). 2. The criteria for withdrawal of a claim for entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for a bone disease and fractures, due to improper VA treatment, for accrued benefits purposes, are met. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2012). 3. The criteria for entitlement to payment of SMC at a higher rate, for accrued benefits purposes, are not met. 38 U.S.C.A. §§ 1114, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawals An appeal may be withdrawn in writing at any time before the Board promulgates a decision, or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). In repeated 2012 correspondence the appellant has stated that she wished to withdraw her appeals with regard to all claims except that involving the level of SMC awarded. As the appellant has withdrawn the appeal of those issues in accordance with 38 C.F.R. § 20.204, the Board no longer has appellate jurisdiction and can take no further action on the matters. VA's Duties to Notify and Assist With respect to the remaining claim regarding SMC entitlement, VA has not met all statutory and regulatory notice and duty to assist provisions. An August 2008 letter did not satisfy the duty to notify provisions, as it failed to describe the elements of SMC as claimed. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, the failure to properly notify is harmless in this case. The appellant has amply demonstrated her understanding of the elements to be considered in calculation of an SMC level; she cites governing statutes and regulations, and renders argument based on the accepted facts under the regulatory scheme. She has shown her actual knowledge of the subject matter at issue. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005) (holding that actual knowledge of what is needed to substantiate a claim prior to adjudication by the Board provides a meaningful opportunity to participate in the adjudication process). Claims for accrued benefits are based upon the evidence of record at the time of the Veteran's death; this includes evidence actually contained in the file and VA records deemed constructively of record at the time of death. Private and VA medical opinions created after death are not to be considered for accrued benefits purposes, nor are reports from non-VA Federal agencies. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a); Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992). Prior to the Veteran's death, the Veteran's service treatment records and VA medical treatment records, to include several examination reports, were obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Neither the Veteran nor the appellant indicated, and the record does not contain evidence, that he was in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Accrued Benefits An eligible party, including the surviving spouse, is entitled to any periodic monthly benefits under laws administered by the Secretary to which the Veteran was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the deceased's death which were due and unpaid preceding the deceased's death. 38 U.S.C.A. §5121; 38 C.F.R. §3.1000. A Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision in order for a surviving spouse to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). The Veteran here died in July 2008, and a claim for death benefits, to include accrued benefits, was received that same month. Accrued benefits claims must be adjudicated based on the evidence of record at time of death. See Ralston v. West, 13 Vet. App. 108, 113 (1999) ("[E]ntitlement to accrued benefits must be determined based on evidence that was either physically or constructively in the veteran's file at the time of death"). Only evidence "generated by, submitted to, or otherwise within VA's possession or control" at the time of death are constructively of record. Hyatt v. Shinseki, 566 F.3d 1364, 1371 (Fed. Cir. 2009). This excludes service department records, private records and opinions, lay statements, and records from other Federal or State agencies. The basic facts are here not in dispute. In a September 2007 decision, the Board granted service connection for hypertension and the related residuals of hypertensive hemorrhage, as secondary to already service-connected PTSD, which was rated 100 percent disabling. The RO implemented this grant in a January 2008 rating decision. Separate ratings were assigned for hypertension (10 percent), slurred speech (0 percent), and complete paralysis of the left upper and left lower extremities (100 percent). Additionally, entitlement to SMC based on the loss of use of one hand and one foot, with a separately rated totally disabling condition, was established. 38 U.S.C.A. § 1114(m), (p); 38 C.F.R. § 3.350(c), (f). SMC is an additional level of compensation to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. Because it considers the synergistic effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. In the case of the Veteran, the RO determined that he had established entitlement to SMC at the (m) level (SMC(m)) under 38 U.S.C.A. § 1114. A Veteran at that level demonstrates "the anatomical loss or loss of use of...one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prostheses in place...." 38 U.S.C.A. § 1114(m). This established his basic, foundational level of SMC; this is reflected on the Codesheet accompanying the Veteran's January 2008 rating (Vol. 17): The RO then considered whether additions to this foundation were warranted. The Veteran was also entitled to a separate 100 percent rating for PTSD, completely independent of the loss of use of his extremities. The law provides that in such cases, a full "step" increase from the basic level is warranted. 38 U.S.C.A. § 1114(p); 38 C.F.R. § 3.350(f)(4). Therefore, an increase to the next higher level of SMC, SMC(n), is warranted. For administrative purposes, to memorialize that the Veteran is being paid at the SMC(n) rate but does not actually meet any of the factual entitlement factors of that rate, but has instead been "bumped up," the awarded level of SMC is referred to as SMC(p), as is shown on the Codesheet, above. The Veteran, and the appellant in his stead, have made two alternative arguments in order to obtain a higher level of SMC. First, they argue that more than two extremities are affected; they seek to count the hand, arm, foot, and leg as separate extremities, for a total of four. This argument fails. The hand is a segment or section of the arm, as the foot is to the leg. The statutes and regulations use hand/foot and arm/leg to distinguish levels of impairment of an extremity, not independent disabilities. As impairment travels up the limb, entitlement, based on severity of functional impairment, increases. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. To do otherwise would lead to the nonsensical result of compensating a claimant twice for the same disability, which is prohibited. 38 C.F.R. § 4.14. Second, the appellant argues that VA has not fully considered the functional impact of the paralysis of the left arm and leg; she maintains that the demonstrated loss of use was so severe, it is the equivalent of amputation. Many of the factual entitlement criteria for the basic foundational levels of SMC note that both "anatomical loss" or "loss of use" are qualifying. Regulations define "loss of use" as when function is no better than if a hand or foot were amputated and replaced by a suitable prosthesis. 38 C.F.R. § 3.350(a)(2). However, the eligibility criteria for a basic SMC rate in excess of (m) based on impairment of one foot/leg and one hand/arm specifically provide that loss of use is not sufficient. Actual anatomical loss is required for entitlement. 38 U.S.C.A. § 1114(n); 38 C.F.R. § 3.350(d)(3). As a matter of law, consideration of the functional equivalent of anatomical loss is therefore not permitted. No medical care provider, lay observer, the Veteran, nor the claimant disputes the characterization of the Veteran's left side impairment. His left arm is effectively paralyzed from the shoulder down, and his left leg is equally impaired from the hip down. See VA examination report of November 2007, Vol. 17. The limbs were still present, however. No amputation of either the left upper or left lower extremity, or any part thereof, was performed at any point prior to the Veteran's death. Accordingly, the basic level of SMC entitlement for the Veteran must remain at (m), with increase to no more than one level to (n) (paid under SMC(p)) upon consideration of his additional total disability. The Board has considered whether possible further increase is warranted based on a factual finding of a need for the regular aid and attendance of another (A&A). The November 2007 VA examiner very clearly stated that the Veteran required assistance in performing the activities of daily living and protecting himself from the dangers inherent in his environment. 38 C.F.R. § 3.352(a). However, such need was based on the extent of the Veteran's paralysis of his left side. The same disabilities cannot be used to support both the foundational level of SMC and any of the increases to such. 38 C.F.R. § 3.350(e)(3). Such would be double compensation for the same disability, and pyramiding is prohibited. 38 C.F.R. § 4.14. No increase may be assigned to the SMC level based on the factual need for A&A. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Payment of special monthly compensation (SMC) at a higher rate, for accrued benefits purposes, is not warranted. (CONTINUED ON NEXT PAGE) ORDER The appeal for entitlement to an evaluation in excess of 10 percent for hypertension, for accrued benefits purposes, is dismissed. The appeal for entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for a bone disease and fractures, due to improper VA treatment, for accrued benefits purposes, is dismissed. Payment of special monthly compensation (SMC) at a higher rate, for accrued benefits purposes, is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs